Opinion
November 15, 1988
Appeal from the Supreme Court, Monroe County, Boehm, J.
Present — Callahan, J.P., Doerr, Green, Pine and Lawton, JJ.
Order unanimously modified on the law, and as modified affirmed without costs, in accordance with the following memorandum: Defendants appeal from an order denying without prejudice their motion for summary judgment dismissing the complaint pending compliance with a discovery order to which they had stipulated. We previously reinstated five causes of action which had been dismissed for failure to state a cause of action (Mansour v Abrams, 120 A.D.2d 933). We now hold that summary judgment should have been granted on the eighth cause of action dismissing it with respect to defendant Goldstock only.
That cause of action, alleging tortious interference with plaintiff's contract of employment, concededly terminable at will, was brought against Goldstock and Marcus only, and the theory of the complaint was that they had wrongfully induced Abrams to fire plaintiff. By affidavit submitted on the motion for summary judgment, which plaintiff does not controvert, Abrams averred that he had delegated to Goldstock the power to hire and to fire Assistant Deputy Attorneys-General in the Organized Crime Task Force. As the person with contracting authority, even though not the employer, Goldstock could not interfere with plaintiff's at-will contract, and his good faith or lack thereof is irrelevant (see, Murphy v. American Home Prods. Corp., 58 N.Y.2d 293, 303-305). However, defendants have not established that Marcus, who prepared the plaintiff's performance evaluations relied on by Goldstock, had the authority to terminate plaintiff. Plaintiff is entitled to the previously ordered discovery to explore Marcus's motivation because plaintiff must prove that Marcus acted in bad faith to prove his cause of action (see, Murtha v. Yonkers Child Care Assn., 45 N.Y.2d 913, 915). Contrary to defendants' contention, tortious interference with contractual relations is not limited to unfair dealings between competitors (see, Murtha v. Yonkers Child Care Assn., supra; Kartiganer Assocs. v. Town of New Windsor, 108 A.D.2d 898, appeal dismissed 65 N.Y.2d 925).
With respect to the three libel causes of action, concerning plaintiff's employee performance evaluations, Special Term properly refused to rule on the motion until the completion of discovery. Statements in the evaluations were subject to a qualified rather than absolute privilege (cf., Ward Telecommunications Computer Servs. v. State of New York, 42 N.Y.2d 289), and whether they were motivated by actual malice is a disputed factual issue (see, 44 N.Y. Jur 2d, Defamation and Privacy, §§ 73-75).
With respect to plaintiff's 42 U.S.C. § 1983 cause of action, Special Term properly refused to rule on it until the completion of discovery. A constitutionally impermissible purpose limits an employer's right to terminate an at-will employee (Murphy v American Home Prods. Corp., supra, at 305). Plaintiff contends that he was fired for a constitutionally impermissible purpose, i.e., a violation of his First Amendment right of free speech. He argues that the speech which resulted in his termination was with respect to refusing to present a matter to a Grand Jury in order to obtain a report which he believed was improper. He had been directed to seek a report against a former public employee pursuant to CPL 190.85. Defendants rely on Matter of Onondaga County Dist. Attorney's Off. ( 92 A.D.2d 32) as at least colorable authority for such a report because they anticipated that the proposed subject of the report would become a consultant to his prior agency. That reliance was misplaced because, in Onondaga, the subject of the report was still a public employee at the time of the Grand Jury action; he resigned before the court had decided whether the report should be sealed or made public. Because the purpose of such a report, as to a named public servant, is to recommend removal or disciplinary action, it is clear that a Grand Jury has no power to consider a report where the subject is no longer a public employee. This disagreement clearly involved a matter of public concern sufficient to trigger a balancing test to determine whether the termination was nevertheless justified (see, Connick v. Myers, 461 U.S. 138).
We conclude, however, that the balancing test can be performed only after the threshold factual question of the basis for plaintiff's termination is resolved. Defendants contend that plaintiff was fired for an array of reasons, of which plaintiff's refusal to present to the Grand Jury was only one. Because of this threshold factual question, we do not reach the issue of whether defendants are entitled to summary judgment based on their defense of qualified immunity as delineated in Anderson v Creighton ( 483 U.S. 635, 107 S Ct 3034) and Giacalone v. Abrams ( 850 F.2d 79, reh denied Aug. 17, 1988).